Red Tape Lets Guards Rape Women Prisoners, Suit Argues

by Kari Lydersen

Female inmates who have suffered sexualized violence at the hands of male jailers are braving retaliation threats to band together in an uphill legal battle to expose and eliminate barriers to their protection.

Jan. 6, 2006 –
Shenyell Smithâ€™s transfer to the "honor unit" at Bedford Hills Correctional Facility in New York â€“ a section of the prison boasting special privileges for prisoners with excellent disciplinary records â€“ turned out to be far from rewarding.

According to Smith, shortly after the move, Officer Delroy Thorpe started making comments about her appearance and in September 2001, he asked her how she felt about becoming sexually involved with a guard. When she rejected his advances, she said, he told her that no inmate "tells him no."

As one of many plaintiffs suing New York prison officials over sexualized violence in the stateâ€™s incarceration facilities, Smith alleges that eventually, Thorpe forced vaginal, anal and oral sex on her. She said his assaults continued and that Thorpe told her that if she complained, no one would believe her.

Despite the threats, Smith spoke out about the assaults. She visited the prison medical center shortly after the rapes and told health care providers she was experiencing vaginal and rectal pain.

In November and December 2001, she told the prison superintendent and her counselor in the Family Violence Program about the assaults and reported them to the Inspector Generalâ€™s office.

She received no responses.

In January 2002, Smith filed an official grievance with the state Department of Correctional Services (DOCS), which was denied.

All the while, Thorpe continued to maintain his post in the honor unit, despite having been named in other complaints of sexual abuse and harassment filed with the Inspector Generalâ€™s office.

Smithâ€™s is one of many similar stories recounted in court filings related to a 2003 suit against individual New York DOCS guards, officials and supervisors. The plaintiffs, who are seeking class-action status in order to include all abused women in New York state correctional facilities, are being represented by the Legal Aid Societyâ€™s Prisonersâ€™ Rights Project.

Smithâ€™s co-plaintiffs report subjection to rape and groping as well as observation in showers and other abuses. The lawsuit alleges that sexual abuse, assault and harassment is common in New Yorkâ€™s state correctional facilities, and women prisoners have little recourse for relief from their abusers.

New York DOCS spokesman Mike Frasier said he could not comment since the case is in ongoing litigation.

So far the US District Court for the Southern District of New York has not certified the case as a class-action lawsuit. Prisonersâ€™ rights advocates say the hold-up is mainly due to federal legislation known as the Prison Litigation Reform Act (PLRA), which they argue has essentially hamstrung prisoners with legitimate complaints.

The PLRA was passed in 1996, supposedly to avoid frivolous lawsuits by prisoners. It requires prisoners to exhaust every administrative remedy before filing a lawsuit in civil court. Since many of the plaintiffs named in the suit never filed grievances with the Department of Corrections, the DOCS has argued, they are not eligible to file a class-action lawsuit.

But the Legal Aid Society, along with allies like the Center for Constitutional Rights and other womenâ€™s and human rights groups, argue that the psychological and emotional effects of sexual abuse make it unreasonable to expect women to be mentally and emotionally capable of following DOCS procedure.

As the PLRA has been interpreted in New York State, a complainant must not only report a problem but identify the means and procedures to remedy it. That means that to comply, women would not only need to file grievances describing their abuse but also recommend what reforms the prison system must make to change the situation.

"The state is arguing that in order to have their day in court, women need to be able to articulate the failings of the policies and procedures which allowed the problem to occur," Legal Aid Society attorney Dori Lewis said. "The prison administration needs to be told thereâ€™s a problem and they need to figure out how to fix it. You canâ€™t expect women to come forward about their abuse and also tell the prison system how to fix itself."

A 1996 report by Human Rights Watch identifies the PLRA as a major obstacle to prison reform. The group wrote that the law has "seriously compromised the ability of any entity, private or public, to combat sexual misconduct in custody."

Lewis affirmed that not many lawyers advocate on behalf of prisoners and said the PLRA is one of the reasons why. She noted that there have only been a few class-action lawsuits filed nationwide on sexualized violence and sexual misconduct in the past few decades, including ones in Georgia in 1992 and Washington, DC two years later.

Studies by rights groups have documented the prevalence of sexual abuse and rape in womenâ€™s prisons across the country. The majority of guards in womenâ€™s prisons across the country are men, according to an analysis by Human Rights Watch, which also found that male guards sexually assault female prisoners or manipulate them into sex with promises of extra privileges, family visits or points toward early release.

A 1996 Human Rights Watch report on the matter notes that "virtually every prisoner [interviewed for the analysis] who had lodged a complaint of sexual misconduct faced retaliation by the accused officer, his colleagues or even other prisonersâ€¦ These punishments took the form of write-ups for sexual misconduct, the loss of â€˜good timeâ€™ accrued toward an early parole, or prolonged periods of disciplinary segregation."

Advocates note that sexualized violence and manipulated sex is highly damaging to women mentally and physically.

In Smithâ€™s case, she reports that she eventually suffered depression, anxiety, sleeplessness and other symptoms of post-traumatic stress disorder. Smith said she experienced bouts of uncontrollable shaking and suicidal thoughts. Having been abused prior to her incarceration made the situation even worse.

"If you think of how women in domestic violence situations on the outside are traumatized and afraid," Lewis said, "that is multiplied by an infinite amount in prison where women would have to complain about a guard to his friend or peer and have no expectation that theyâ€™ll be moved or protected from retaliation."

A state judge will likely rule in late February on whether to give the lawsuit class-action status. If it proceeds and is successful, it could gain reforms and punitive damages on behalf of all women abused in New York state prisons. Since it is a state lawsuit, it may not have wide-ranging impact in terms of precedent set, but lawyers hope it will serve as a warning or model for other states in their implementation of PLRA and their process for dealing with sexual abuse complaints.

The plaintiffs also argue that sexual abuse in prison violates international law against rape, torture and cruel and unusual punishment, a situation which should supersede compliance with the PLRA and other administrative roadblocks.

"The international condemnation against rape and sexual assault is not being dealt with," said Jennie Green, an attorney with the Center for Constitutional Rights. "These standards are supposed to be universal."